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What Larry Didn’t Get

Science fiction fans had William Gibson’s Neuromancer, the archetypal cyberpunk novel. Beginning in the early 1970s, futurists had Alvin Toffler’s Future Shock and Third Wave.

And ten years ago, in 1999, cyber-law buffs had Stanford University law professor Larry Lessig’sCode And Other Laws of Cyberspace. It’s difficult to overstate the influence that Lessig’s book has had on discussions of regulating technology, especially the Internet and computer software, among academics, activists, programmers, and Silicon Valley types. (It never really caught on in political circles, especially in Washington, D.C.)

Lessig wrote Code at a time of Internet turmoil, when memories of legal disputes over free speech in the form of the Communications Decency Act and political battles over mandatory eavesdropping on electronic communications were fresh. The V-Chip was new; the organization charged with Internet governance was forming; encryption products without backdoors for the government might be banned; and a college student named Shawn Fanning was about to write a little program called Napster.

Code offered a burgeoning protest movement this unifying theme and philosophy: Code is a form of law and can be a potent force for social liberation or control. How the Internet’s underlying architecture is shaped, Lessig argued, is important enough that lawyers, programmers, and government officials should pay close attention to choices made in software design.

This was both insightful and prescient. Long before a variant of the GNU/Linux operating system called Ubuntu found its way into Best Buy stores, Lessig was advocating the philosophical merits of free software that, if you were sufficiently clever, you could rewrite or expand yourself. He anticipated the problems of expansive copyright law and wrapping data in layers of cryptographic copy protection, which led Apple to abandon it on iTunes. And he previewed the privacy problems of the FBI tracking mobile phones, which we found out in 2005 that federal agents believe they can do without even evidence of probable cause.

No wonder Code became assigned reading for computer science and law students, and then was followed by four followup books, including a Wiki-assisted and free-to-download revision called Codev2. Along the way, Lessig became a technopolitical celebrity, once flirting with a running for a vacant congressional seat.

Few lawyers or programmers would take issue with Lessig’s point that choices in Internet architecture are important. Electronic discussion forums that discourage anonymity possess a different tone than ones that encourage it, and each approach has its tradeoffs. An internal discussion list for expectant mothers at one large Silicon Valley firm strips identifying information from messages, which encourages colleagues to broach awkward topics but also inhibits a sense of community from forming.

That argument holds for traditional architecture too: If parents are designing a house, they may choose to place an infant’s room next to theirs to aid in monitoring. And if a teenage son has a habit of nocturnal adventuring that should be discouraged, his room might be better placed on a top floor rather than by the back door. While a posted speed limit might ask drivers to remain under 25 miles an hour, placing speedbumps on the road might make the rule stick (although at the cost of lives, if ambulances are delayed).

If that were the entirety of Code, this would be a short essay, and Code would be less provocative than it proved to be. But the last chapters of the book go further and claim that the choice of rules is too important to be “left to the market.” Instead, it should be entrusted to politicians and (even better) judges, who are better equipped to confront constitutional questions.

Lessig writes: “Not only can the government take these steps to reassert its power to regulate, but (it) should. Government should push the architecture of the Net to facilitate its regulation, or else it will suffer what can only be described as a loss of sovereignty… We need to be able to make political decisions at the level of the Net. A political judgment needs to be made about the kind of freedom that will be built into the Net.”

These are not exactly libertarian sentiments, and in fact Lessig goes out of his way to assail libertarianism and “policy-making by the invisible hand.” He prefers what probably could be called technocratic philosopher kings, of the breed that Plato’s The Republic said would be “best able to guard the laws and institutions of our State–let them be our guardians.” These technocrats would be entrusted with making wise decisions on our behalf, because, according to Lessig, “politics is that process by which we collectively decide how we should live.”

Compare these high ideals to the actual laws that the solons in Washington, D.C. enacted over the last decade. We were blessed with the CAN-SPAM Act, which legalized bulk junk e-mail rather than doing what its name might suggest. A bipartisan majority in Congress approved the Patriot Act, its renewal, and immunity for telecommunications companies that illegally cooperated with the National Security Agency. The Real ID Act became law once it was glued onto an Iraq “emergency” appropriations bill, and Hollywood lobbyists continued to expand copyright law beyond what both liberals and libertarians might prefer. Meanwhile, bills that Lessig and his allies backed on topics such as Net neutrality, orphaned works, and copyright anti-circumvention proved uniformly unsuccessful.

So much for our elected leaders making an informed “political judgment” about “the kind of freedom that will be built into the Net.”

One response might be that the right philosopher-kings have not yet been elevated to the right thrones. But assuming perfection on the part of political systems (especially when sketching plans to expand their influence) is less than compelling. The field of public choice theory has described many forms of government failure, and there’s no obvious reason to exempt Internet regulation from its insights about rent-seeking and regulatory capture.

Meanwhile, as the federal government seized more power over the last decade — derailing the creation of an .xxx top-level domain is another example — Lessig’s predictions of private sector abuses proved to be a bit wide of the mark. Code claimed that commercial firms “will push for a certificate architecture that would enable its own form of control” and that would “enable some forms of state control.” Instead, Microsoft Passport (now Windows Live ID) died an unlamented death. Code fretted that over time, “code writing becomes commercial” and “the product of a smaller number of large companies,” which has not happened yet, and would not obviously pose a threat even if it had.

The last chapter of the 1999 edition of Code is titled “What Declan Doesn’t Get,” and says, about the arguments I was making at the time: “There is one unifying theme to Declan’s posts: let the Net alone” and says that my plea is that we “do nothing.” He adds: “Do-nothingism is not an answer; something can and should be done.”

But critiquing bad policy proposals (and there were plenty of them in the late 1990s) is hardly do-nothingism. It’s possible to agree with Lessig that code is important, that architectures promoting liberty are worth defending, and that some government actions are preferable to inaction — while being suspicious of sweeping indictments of “commercial” activities and calls for expansions of government authority.

It may be telling, perhaps, that the updated edition of Code that Lessig published seven years after the original strikes a more conciliatory tone. “I am not a libertarian in the sense Declan is, though I share his skepticism about government,” Lessig writes in the new version. “But we can’t translate skepticism into disengagement. We have a host of choices that will affect how the Internet develops and what values it will embed.”

That’s true enough, of course. But if the experience of the last decade has taught us anything, it’s that Internet companies have proven to be flexible and responsible in crafting code in a way that benefits their users. And we’ve learned that technocratic philosopher-kings in Washington, D.C. are very difficult to find.

Also from This Issue

Jonathan Zittrain argues that the differences between Lawrence Lessig and Declan McCullagh aren’t really ideological. They’re about process and approach. He personally finds much common ground with cyberlibertarians, but also believes that a great deal of effort must be put forth to create institutions that will preserve an open Internet. Neither the government nor traditional, market-based firms are necessarily well-suited to the task.

Adam Thierer condemns Lessig’s Code for its pessimism and inaccurate predictions. Where Code predicted that the future would consist largely of online “walled gardens” offering total corporate control, the walled-garden model has proven a failure. Lessig has recently claimed that he is even more confident today of the predictions he made ten years ago; Thierer doubts whether any evidence supports him. Thierer views Code and the intellectual movement it spawned as essentially one that justifies government control where no such control is warranted. He laments this movement’s growing influence.

Lawrence Lessig is happy that many of the bleaker predictions of Code have not come to pass. This is not to be taken, however, as a sign that freedom is easily gained or kept. It took an enormous amount of work on the part of many theorists, activists, coders, and lawyers to preserve liberty on the Internet. If Code looks wrong in hindsight, we have them to thank. Yet new threats loom large today, and Lessig in particular praises Jonathan Zittrain’s The Future of the Internet and How to Stop It as a warning to a new generation seeking to preserve liberty on the Internet. Future activists will have to continue the work of preserving freedom, because, he concludes, democratic government often isn’t up to the task.

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